https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/7649

**REPUBLIC OF KENYA** **IN THE HIGH COURT OF KENYA AT NAIROBI** **CIVIL APPEALLATE DIVISION** **CIVIL APPEAL NO. E1186 OF 2024** **MUEMA MWANGANGI & JACKSON MUSYOKA MWANGANGI** **(Suing as the Legal Representatives of the Estate of the late** **JOEL MWANGANGI …………………………………..……......APPELLANT** **VERSUS** **KENYA RAILWAYS CORPORATION.………………….…… RESPONDENT** *(Being an Appeal from the Judgment of the Hon. P K Rotich (PM) delivered on 27th September 2024 in CMCC NO 9241 of 2025)* **JUDGEMENT** 1. The Appellants were originally the Plaintiffs in CMCC NO. 9241 of 2005 where they instituted suit by way of a plaint dated 24/8/2005, seeking judgment against the Respondent for general damages, special damages, and costs of the suit. 2. The Appellants claimed that on 3/2/2003, at around 11:00 am, the deceased was lawfully crossing a railway line in Kaloleni when the Respondent’s agent or servant reversed its train without care and attention to pedestrians, and failed to hoot, brake, or slow down and it crashed the deceased. 3. The trial court identified the issues for determination as follows; 4. ***Whether the Respondent is liable for the accident;*** 5. ***If liable, the quantum of damages payable; and*** 6. ***Who shall pay the costs of the suit.*** 7. The trial court found that the 1st Appellant’s evidence was purely hearsay because no eyewitness was called to testify on how the accident occurred. 8. The court held that the Appellant failed to prove on a balance of probabilities that the Respondent was liable for the accident. 9. Consequently, the trial court dismissed the suit. However, the court made no order as to costs, owing to the fact that the deceased lost his life in the accident. 10. The appellants have appealed against the said judgment on the following grounds; 11. ***THAT the Learned trial Magistrate erred in law and misdirected himself on the law and principles on the law relating to the burden of proof.*** 12. ***THAT the Learned trial Magistrate erred in law and fact by holding that the Appellants herein had not proved their case.*** 13. ***THAT the Learned trial Magistrate erred in law and fact by taking into account extraneous matters and ignored the evidence tendered by the Appellants and the Appellants are aggrieved by the same and intend to pursue the Appeal.*** 14. ***THAT the Learned trial Magistrate erred in law and fact by disregarding and misconstruing the evidence laid out in support of the Appellants' case.*** 15. ***THAT the resulting judgement reflected only one side of the matter wherein substantive justice was not done.*** 16. ***THAT the Learned trial Magistrate erred in law and fact by not awarding any damages to the Appellant.*** 17. ***THAT the Learned trial Magistrate erred in law and fact by disregarding and misconstruing the evidence laid out by the Appellants and their submissions.*** 18. The parties filed written submissions as follows; The Appellants submitted that they were challenging the judgment of the Principal Magistrate at Milimani delivered on 27th September 2024, which dismissed the Appellants’ claim. 19. The Appellants’ primary argument is that the learned trial magistrate erred in law and fact by misdirecting himself on the burden of proof, disregarding the evidence tendered by the Appellants, and failing to award any damages. 20. The Appellants invite the High Court, as the first appellate court, to re-evaluate the evidence afresh under Section 78 of the Civil Procedure Act, following the principles set out in Selle v Associated Motor Boat Co. Ltd, since the trial court failed to properly consider the circumstances of the accident. 21. The Appellants highlight that the deceased, a 65-year-old man, was lawfully crossing the railway line at Kaloleni when he was hit by a train that was reversing. 22. The Appellants contend that the train driver reversed without hooting, whistling, or braking, and that due to the train’s loud noise, the deceased could not have heard any warning. 23. It is further argued that the Respondent’s own records acknowledged the accident, and that the Respondent falsely assured the Appellants’ family that the claim would be settled and that they had up to three years to pursue it. 24. The Appellants rely on the doctrine of res ipsa loquitur, asserting that the mere fact of the accident occurring while the train was reversing shifts the evidential burden to the Respondent to explain the lack of negligence. 25. Citing **Netah Njoki Kamau v Eliud Mburu Mwaniki** and the standard of proof on a balance of probabilities as stated in **Miller v Minister of Pension**, the Appellants argue that the trial court failed to evaluate the probabilities, and that the evidence adduced, particularly the death certificate showing multiple injuries from a train crush, discharges the Appellants’ burden. 26. The Appellants therefore urges the court to find the Respondent wholly liable for the accident and to award general damages of Kshs. 2,150,000 as pleaded, along with damages for loss of expectation of life, loss of dependency, and special damages as originally claimed in the trial court. 27. The Appellants pray that the appeal be allowed with costs. 28. The Respondent in its submissions argue that the appeal by Muema Mwangangi and Jackson Musyoka Mwangangi (suing as legal representatives of the estate of Joel Mwangangi) should be dismissed. 29. The Respondent contends that the Appellants failed to discharge the burden of proof required under Section 107 of the Evidence Act, as they did not adduce any direct evidence of negligence against the Kenya Railways Corporation’s train operator. 30. The submissions highlight that the Appellants’ own witnesses were not present at the scene of the accident on 3rd February 2003 and only received a telephone call after the incident, meaning their testimony was hearsay. 31. The only documentary evidence produced was a Death Certificate, which confirms that the deceased died from injuries sustained in a train accident but does not prove any fault on the part of the Respondent. 32. The Respondent argues that the mere occurrence of an accident is not proof of negligence under Kenyan law, citing the principle from **Kiema Mutuku v Kenya Cargo Hauling Services Ltd** that there is no liability without fault. 33. Regarding the doctrine of res ipsa loquitur invoked by the Appellants, the Respondent submits that this doctrine is not a substitute for proof of negligence; the Appellants must first establish a prima facie case showing that the accident was within the exclusive control of the Respondent and would not ordinarily occur without negligence, which they failed to do. 34. The Respondent also points out that the Appellants alleged meetings with Kenya Railways officials where false assurances of settlement were given, but no evidence or documentation was adduced to prove these meetings, and pleadings alone are not evidence. 35. Consequently, the Respondent prays that the High Court dismisses the appeal with costs, upholding the trial magistrate’s decision that the Appellants failed to prove their case on a balance of probabilities. 36. The following issues arise for determination in this appeal; 37. ***Whether the learned trial magistrate erred in law and fact in holding that the Appellants had failed to prove their case on a balance of probabilities;*** 38. ***Whether the trial magistrate erred in failing to properly apply the doctrine of resipsa loquitur to the circumstances of this case;*** 39. ***Whether the trial magistrate erred in disregarding the evidence tendered by the Appellants and in finding that the 1st Appellant’s evidence was purely hearsay; and*** 40. ***Whether the trial magistrate erred in failing to award any damages to the Appellants despite the death of the deceased as a result of the accident involving the Respondent’s train.*** 41. This being a first appeal, this Court has a duty to re-evaluate the evidence that was tendered before the trial court, assess it, and make its own conclusions in the matter, while bearing in mind that this Court had no advantage of seeing the witnesses testify and observing their demeanor. 42. This duty was well established in the case of **Selle v Associated Motor Boat Co. Ltd [1965] EA 123,** where the Court of Appeal held that the first appellate court has to reconsider and evaluate the evidence that was tendered before the trial court, assess it and make its own conclusions in the matter. 43. The Appellants instituted suit against the Respondent seeking damages arising from the death of the deceased, Joel Mwangangi, who was fatally injured on 3rd February 2003 at around 11:00 am while lawfully crossing a railway line in Kaloleni. 44. The Appellants pleaded that the Respondent’s agent or servant reversed its train without care and attention to pedestrians, and failed to hoot, brake, or slow down, thereby causing the fatal accident. 45. The trial court dismissed the suit on the sole ground that the 1st Appellant’s evidence was purely hearsay because no eyewitness was called to testify on how the accident occurred, and that the Appellants failed to prove on a balance of probabilities that the Respondent was liable. 46. This Court has carefully re-evaluated the evidence on record. It is not in dispute that the deceased died as a result of being hit by a train belonging to the Respondent. 47. The Death Certificate produced in evidence confirms that the deceased sustained multiple injuries from a train crush. 48. The fact of the accident itself is not denied by the Respondent. What is in dispute is whether there was any negligence on the part of the Respondent’s employees in the operation of the train. 49. The trial magistrate dismissed the suit primarily because no eyewitness was called. 50. However, with great respect to the learned trial magistrate, this Court finds that this approach failed to appreciate the nature of accidents involving railway trains and the applicability of the doctrine of res ipsa loquitur. 51. The doctrine of res ipsa loquitur, which literally means "the facts speaks for themselves," is a principle of evidence that allows a court to infer negligence from the very nature of an accident or occurrence, without the need for direct eyewitness testimony, provided that the accident is of a kind that does not ordinarily occur in the absence of negligence and the instrumentality causing the accident was under the exclusive control of the defendant. 52. The said doctrine is a mechanism whereby the claimant can be relieved of the burden of proving negligence, and the court can infer negligence in those situations where the factual circumstances of the case would make proving it almost impossible. 53. Charlesworth & Percy on Negligence, 12th edition, states that the question whether to apply the maxim arises where the claimant is able to prove the happening of an accident but little else, and if on the evidence it is more likely than not that its effective cause was some act or omission of the defendant which would constitute a failure to take reasonable care, then in the absence of some plausible explanation consistent with an absence of negligence, the claim would succeed. 54. In the present case, the Appellants pleaded and attempted to prove that the Respondent’s train was reversing at the time it hit the deceased. 55. A train reversing along a railway line where pedestrians are known to cross, without hooting, without braking, and without any warning to pedestrians, is not an occurrence that would ordinarily happen without negligence on the part of the train operator. 56. The train was under the exclusive control of the Respondent’s agent or servant. The deceased was lawfully crossing the railway line. 57. The Respondent offered no explanation whatsoever regarding how the accident occurred. The Respondent did not call the train driver or any member of the train crew to testify and explain the circumstances leading to the accident. 58. The Respondent simply denied liability in its statement of defence but adduced no evidence to rebut the inference of negligence that arises from the circumstances of this case. 59. I find that in the circumstances of this case, failure to produce an eyewitness does not warrant an automatic dismissal of a suit, and the court can infer negligence from the circumstances of the case even without direct eyewitness testimony. 60. The doctrine of res ipsa loquitur is applicable where a party claims that the fact of the accident happening speaks for itself, and the defence can only rebut that assertion by showing either that there was no negligence on their part or that the accident was due to circumstances beyond their control. 61. In the present case, the Respondent made no attempt whatsoever to rebut the application of the doctrine. 62. The Respondent did not call the train driver, did not produce any train movement log, and did not offer any explanation as to why the train was reversing on a public railway line without giving adequate warning to pedestrians who were lawfully crossing. 63. The trial magistrate erred in holding that the 1st Appellant’s evidence was purely hearsay. 64. The 1st Appellant was not at the scene, but that is not fatal to the Appellants’ case. 65. The Appellants could not reasonably be expected to produce an eyewitness to a fatal accident involving a train, where the deceased was the only pedestrian at the scene and was killed instantly. 66. In such circumstances, it is the Respondent who is in a better position to explain how its train was being operated at the time of the accident. 67. The Respondent’s failure to call any evidence from its train crew gives rise to an adverse inference against the Respondent. 68. This Court finds that the trial magistrate misdirected himself on the burden of proof. 69. Section 107 of the Evidence Act Cap 80 Laws of Kenya provides that whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. 70. The Appellants proved the fact of the accident, the fact that the train was under the exclusive control of the Respondent, and the fact that the deceased died as a result of being hit by the train. 71. The burden then shifted to the Respondent to explain that the accident occurred without any negligence on its part. The Respondent failed to discharge that burden. 72. This Court further finds that the trial magistrate erred in disregarding the documentary evidence presented by the Appellants, including the Death Certificate which confirmed that the deceased died from multiple injuries sustained from a train crush. 73. The very nature of the injuries sustained by the deceased, as reflected in the Death Certificate, is consistent with a train that was moving at considerable speed without adequate warning. 74. The fatal injuries sustained by the deceased speak for themselves and point to negligence on the part of the train operator. 75. Accordingly, this Court finds that the learned trial magistrate erred in law and fact by dismissing the Appellants’ suit. 76. The trial magistrate failed to properly apply the doctrine of res ipsa loquitur, misdirected himself on the burden of proof, and disregarded the circumstantial evidence that clearly pointed to the Respondent’s negligence. 77. This Court hereby sets aside the judgment of the trial court delivered on 27th September 2024 dismissing the Appellants’ suit. 78. This Court finds the Respondent 100% liable for the accident that caused the death of Joel Mwangangi. 79. Having found the Respondent fully liable, this Court now proceeds to assess the quantum of damages payable to the Appellants as the legal representatives of the estate of the deceased. 80. The Appellants claimed general damages under the Law Reform Act and the Fatal Accidents Act, as well as special damages. 81. The deceased was 65 years old at the time of his death. The Appellants pleaded that the deceased enjoyed good health and was a vibrant member of the community. 82. In the absence of evidence of earnings by the deceased, this Court will apply the minimum wage for a general labourer as at the time of the accident in 2003. 83. In the absence of prove of income, this court awards a global figure of Kshs, 2,000,000 in respect of loss of dependency. 84. On loss of expectation of life, the conventional award in Kenya is Kshs. 100,000. This Court awards Kshs. 100,000 under this head. 85. On pain and suffering, the evidence shows that the deceased died instantly as a result of the accident. In such circumstances, only nominal damages are awarded, and this Court awards Kshs. 20,000 as was held in the same authorities. 86. The Appellants pleaded special damages but did not strictly prove the same with receipts. In the absence of proof, no award is made for special damages. 87. The total award therefore is as follows; 88. ***Kshs. 2,000,000 for loss of dependency*** 89. ***Kshs. 100,000 for loss of expectation of life*** 90. ***Kshs. 20,000 for pain and suffering,*** 91. Total of Kshs. 2,120,000. The Appellants shall have the costs of this appeal and of the original suit. 92. The appeal be and is hereby allowed. The judgment of the Principal Magistrate at Milimani delivered on 27th September 2024 dismissing the Appellants’ suit is hereby set aside. 93. Judgment is hereby entered in favour of the Appellants against the Respondent as follows: 94. ***Liability at 100% in favour of the Appellants;*** 95. ***General damages in the sum of Kshs. 2,120,000 comprising of*** 96. ***Kshs. 2,000,000 for loss of dependency,*** 97. ***Kshs. 100,000 for loss of expectation of life, and*** 98. ***Kshs. 20,000 for pain and suffering***. 99. The award shall attract interest at court rates from the date of the trial court’s judgment until payment in full. 100. Orders to issue accordingly. **DATED, SIGNED AND DELIVERED AT NAIROBI THIS 2ND DAY OF JUNE 2026** **ASENATH ONGERI** **JUDGE** **In the presence of** Mr Njoroge for the Appellant No appearance for the Respondent Chrispine - Court Assistant